Conservation Congress v. United States Forest Service et al

Filing 15

STIPULATION and ORDER FOR STAY OF PROCEEDINGS signed by Judge John A. Mendez on 12/6/13. CASE STAYED. (Mena-Sanchez, L)

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ROBERT G. DREHER
Acting Assistant Attorney General
PAUL D. BARKER, JR.
Senior Attorney
United States Department of Justice
Environment and Natural Resources Division
Natural Resource Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tel: [phone]
Fax: [phone]
[e-mail]

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SETH M. BARSKY, Chief
S. JAY GOVINDAN, Assistant Chief
J. BRETT GROSKO, Trial Attorney
United States Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tel: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Defendants

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JAMES J. TUTCHTON (CA Bar No. 150908)
Tutchton Law Office, LLC
6439 E. Maplewood Ave.
Centennial, CO 80111
Tel: [phone]
[e-mail]

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STUART NICHOLAS WILCOX (Pro Hac Vice)
Stuart Wilcox LLC
1840 Vine St. #5
Denver, CO 80206
Tel: [phone]
[e-mail]

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STEVEN SUGARMAN (Pro Hac Vice Application Forthcoming)
347 County Road 55A
Cerrillos, New Mexico 87010
Tel: [phone]
[e-mail]

JOINT STIPULATION FOR
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STAY OF PROCEEDINGS
Conservation Congress v. U.S., No. 2:13-cv-01977 JAM-DAD

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Attorneys for Plaintiff

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

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) Case No.: 2:13-cv-01977-JAM-DAD
)
)
)
v.
)
UNITED STATES FOREST SERVICE, )
and UNITED STATES FISH AND ) JOINT STIPULATION
) FOR STAY OF PROCEEDINGS
WILDLIFE SERVICE,
)
Defendants.
)
)
________________________________ )
CONSERVATION CONGRESS,
Plaintiff,

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Plaintiff

Conservation

Congress,

by

its

undersigned

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counsel, and Defendants United States Forest Service (“Forest

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Service”) and United States Fish and Wildlife Service (“Fish and

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Wildlife Service”), by their undersigned counsel, hereby jointly

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stipulate to a stay of proceedings in this case and request the

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Court’s approval of the stipulation.

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Plaintiff challenges a Forest Service fuel reduction and

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timber

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proposed on the Mendocino National Forest.

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that the Project will impact northern spotted owls, a threatened

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species under the Endangered Species Act (“ESA”), as well as the

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species’ habitat.

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Service violated the National Environmental Policy Act and the

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National

Forest

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Plaintiff

seeks

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proceeding, among other relief.

sale

project,

the

Smokey

Project

(the

“Project”),

Plaintiff alleges

Plaintiff also raises claims that the Forest

Management
to

have

Act

the

by

Court

approving
enjoin

JOINT STIPULATION FOR
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STAY OF PROCEEDINGS
Conservation Congress v. U.S., No. 2:13-cv-01977 JAM-DAD

the

the

Project.

Project

from

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The Forest Service has suspended operations on the Project

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and

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Service

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consultation with the Fish and Wildlife Service regarding the

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impact

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habitat.

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Service will reconsider the biological opinion at issue herein

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regarding such impacts and may issue a new biological opinion.

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If it does, Plaintiff will likely seek to reconsider its current

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no

work

has

of

the

taken

in

intends

yet

the

Project

place.
near

on

Furthermore,

future

northern

to

spotted

the

Forest

re-initiate

owls

and

ESA

their

As part of that consultation, the Fish and Wildlife

claims and amend its complaint to revise those claims.
The

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parties

wish

to

avoid

having

the

Court

or

parties

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expend time and resources on claims that are reasonably likely

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to become moot when the re-initiation of ESA consultation is

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complete.

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stipulate to and request a stay of these proceedings to preserve

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judicial resources and the parties’ resources.

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included in this Stipulation a schedule for apprising the Court

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of the parties’ respective positions and progress to efficiently

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manage the case.

Accordingly,

Plaintiff

and

Defendants

respectfully

The parties have

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It is well-established that “the power to stay proceedings

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is incidental to the power inherent in every court to control

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the disposition of the causes on its docket with economy of time

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and effort for itself, for counsel, and for litigants.”

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v. North American Co., 299 U.S. 248, 254 (1936).

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enter

a

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which

bear

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proceedings

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character,” and granting the stay “does not require that the

stay

“pending

resolution

upon

the

case

are

judicial,

.

.

of
.

A court may

independent
.

whether

administrative,

or

Landis

proceedings

the

separate

arbitral

in

issues in such proceedings are necessarily controlling of the
JOINT STIPULATION FOR
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STAY OF PROCEEDINGS
Conservation Congress v. U.S., No. 2:13-cv-01977 JAM-DAD

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action

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California,

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(citations omitted); see also Lockyer v. Mirant Corp., 398 F.3d

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1098, 1110 (9th Cir. 2005) (stay may serve the interests of

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judicial economy by allowing development of factual and legal

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issues).

In

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resources,

and

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pleadings

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consultation is complete.

before

the

Ltd.,

and

court.”
593

this

F.2d

case,

will
motions

a

Leyva
857,

stay

v.

Certified

863-64

will

(9th

conserve

allow

the

parties

that

may

well

Grocers

to

become

Cir.

the

avoid
moot

of

1979)

Court’s

preparing
after

ESA

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For these reasons, and for good cause shown, the parties

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stipulate as follows and request that the Court approve this

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stipulation:

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1. The case is stayed and all current deadlines and due
dates are vacated.

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2. Until the ESA consultation is complete, the Defendants

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shall submit a status report apprising the Court of the

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status of the ESA consultation no later than 60 days

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after the date the case is stayed, and every 60 days

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thereafter until consultation is complete.

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3. The Forest Service will promptly transmit to Plaintiff a

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copy of any new Biological Assessment that it prepares

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for purposes of the re-initiated ESA consultation, as

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soon as reasonably possible after the document has been

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transmitted to the Fish and Wildlife Service.

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as soon as the Fish and Wildlife Service transmits a

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Biological Opinion or document to the Forest Service to

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complete the re-initiated consultation, a copy of that

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Biological Opinion or other document shall be promptly

JOINT STIPULATION FOR
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STAY OF PROCEEDINGS
Conservation Congress v. U.S., No. 2:13-cv-01977 JAM-DAD

Likewise,

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provided to Plaintiff, and in any event no later than the

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Notice contemplated in Paragraph 4 below.

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4. Defendants will file a Notice with the Court and counsel

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as

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completed the re-initiated ESA consultation (“Defendants’

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Notice”). The stay will expire when Defendants’ Notice is

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filed.

soon

as

reasonably

possible

after

Defendants

have

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5. Plaintiff will file a Notice with the Court and counsel

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no later than 14 days after Defendants’ Notice is filed

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informing

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intends

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Project (“Plaintiff’s Notice”).

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the
to

Court

file

and

an

Defendants

amended

whether

complaint

Plaintiff

regarding

the

6. If no amended complaint is to be filed, Defendants will

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file

an

answer

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complaint

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Plaintiff’s Notice.

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after Plaintiff’s Notice is filed, the Parties will file

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a Joint Status Report addressing the issues contemplated

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in the Court’s September 23, 2013 Order Requiring Joint

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Status Report.

no

or

response

later

than

to

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Plaintiff’s
days

after

original
receiving

In addition, no later than 28 days

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7. If Plaintiff’s Notice states that Plaintiff intends to

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file an amended complaint, its amended complaint will be

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filed

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Defendants’ Notice is filed.

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answer or response no later than 28 days after the date

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the amended complaint is filed.

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after the filing of the amended complaint, the Parties

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will file a Joint Status Report addressing the issues

no

later

than

77

days

after

the

date

that

Defendants will file an

JOINT STIPULATION FOR
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Conservation Congress v. U.S., No. 2:13-cv-01977 JAM-DAD

No later than 42 days

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contemplated

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Requiring Joint Status Report.1

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in

the

Court’s

September

23,

2013

Order

8. The Forest Service will give Plaintiff 15 days notice

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before

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Project and will not lift the suspension of operations on

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the

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Defendants’ Notice that the re-initiated ESA consultation

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is complete.

lifting

Project

the

before

suspension

15

days

of

operations

following

the

on

filing

the

of

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For all the foregoing reasons, the Plaintiff and Defendants

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request that the Court approve this Joint Stipulation for Stay

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of Proceedings.

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It is so ordered this 6th day of December, 2013.

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/s/ John A. Mendez________________

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The Honorable John A. Mendez
United States District Court Judge

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The parties contemplate that Plaintiff might actually need to
file two amended complaints in this action, since new citizen’s
suit claims against the Forest Service cannot be pled until
sixty days have elapsed from the time that Plaintiff provides
the Forest Service notice of its intent to sue under the
citizen’s suit provision of the ESA.
16 U.S.C. § 1540(g)(2).
If there were a need for Plaintiff to seek interim injunctive
relief within that sixty day period, then Plaintiff would likely
file a First Amended Complaint pleading those new claims which
are not ESA citizen’s suit claims as the basis for its motion
for interim injunctive relief. If Plaintiff indicates an intent
to amend its complaint two times, as set out above, then the
parties contemplate that Federal Defendants will answer only
after the complaint has been amended a second time.
JOINT STIPULATION FOR
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STAY OF PROCEEDINGS
Conservation Congress v. U.S., No. 2:13-cv-01977 JAM-DAD

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Respectfully submitted this 6th day of December, 2013,

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_/s/Stuart Nicholas Wilcox____
(signed by filer with written
authorization provided on
December 6, 2013)
JAMES J. TUTCHTON (CA Bar No.
150908)
Tutchton Law Office, LLC
6439 E. Maplewood Ave.
Centennial, CO 80111
Tel: [phone]
[e-mail]
STUART NICHOLAS WILCOX
(Pro Hac Vice)
Stuart Wilcox LLC
1840 Vine St. #5
Denver, CO 80206
Tel: [phone]
[e-mail]

ROBERT G. DREHER
Acting Assistant Attorney
General

_/s/ Paul D. Barker, Jr._
PAUL D. BARKER, JR.
Senior Attorney
United States Department of
Justice
Environment and Natural
Resources Division
Natural Resource Section
Ben Franklin Station
P.O. Box 7611
Washington, D.C. 20044-7611
Tel: [phone]
Fax: [phone]
[e-mail]

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STEVEN SUGARMAN
(Pro Hac Vic Application
Forthcoming)
347 County Road 55A
Cerrillos, New Mexico 87010
Tel: [phone]
[e-mail]

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Attorneys for Plaintiff
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SETH M. BARSKY, Chief
S. Jay Govindan, Assistant
Chief
J. BRETT GROSKO, Trial
Attorney
United States Department of
Justice
Environment and Natural
Resources Division
Wildlife and Marine Resources
Section
Ben Franklin Station, P.O.
Box 7611
Washington, D.C. 20044-7611
Tel: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Defendants
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JOINT STIPULATION FOR
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STAY OF PROCEEDINGS
Conservation Congress v. U.S., No. 2:13-cv-01977 JAM-DAD